Opinion
December 18, 1961
Appeal by defendant from a judgment of the County Court, Nassau County, rendered January 27, 1961, after a jury trial, convicting him of attempted rape in the first degree and of assault in the third degree, and sentencing him to serve a term of 2 to 10 years on the attempted rape count and a term of one year, with execution of such one year sentence suspended, on the assault count. Judgment reversed on the law and the facts and new trial ordered. In our opinion, this defendant did not have a fair trial. The prosecutor's constant reference to 35 photographs allegedly found in defendant's automobile but not admitted in evidence, was improper and prejudicial, as were the prosecutor's comments with respect to the defendant's failure to testify at the felony examination held on October 19, 1959. Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.